A cut and paste gone wrong

Andrew Geddis proposed that instead of passing a law to suspend the Supreme Court ruling on Police video surveillance, that Parliament could just instead pass into law the provisions of the Search and Surveillance Bill as reported back by Select Committee.

Labour adopted this idea as their policy and Charles Chauvel drafted a bill which he said did this. He whined that the Government refused to grant leave for it to be introduced. But there was a very good reasons for this. Poor Charles cut and paste from the wrong version of the Search and Surveillance Bill. He used the bill as introduced, not as reported back by select committee. This is an incredibly stupid and basic error to make.

“Charles Chauvel’s draft SOP for the Video Camera Surveillance (Temporary Measures) Bill demonstrates the danger of taking parts of draft legislation out of the context in which they were drafted,” Attorney-General Christopher Finlayson says.

“Mr Chauvel has, apparently inadvertently, drafted his SOP using large sections of the Search and Surveillance Bill as introduced to Parliament, rather than as reported back from Select Committee last year,” Mr Finlayson said. “This has created some serious problems in what he proposes.”

A number of problems are evident in the SOP posted by Mr Chauvel on the Labour Party blogsite:

• Mr Chauvel’s clause 7(1) refers to a period not exceeding 72 hours. But this was in the Search and Surveillance Bill as introduced, not as reported back. The Select Committee altered it to 48 hours, to reduce the period of time a surveillance device is first used without obtaining a surveillance device warrant. This increases surveillance powers, something Mr Chauvel previous expressed concern about.

• Mr Chauvel’s clause 8(3)(a) uses the wording of the Search and Surveillance Bill as introduced, not as reported back. He would require a residual warrant be disclosed, even though the Select Committee ruled this out.

• Mr Chauvel’s clause 11 is completely deficient. He uses clause 50 of the Bill as originally drafted, leaving out important additions made by the Select Committee, particularly section 42AA dealing with restrictions on some trespass surveillance and use of interception devices.

Mr Chauvel returned fire, saying the Government could have improved his SOP, rather than spend time scrutinising it and putting out a press release.

“It’s a shame we have a minister who would prefer to take the approach of chipping at the opposition, rather than looking at how we can improve the law.”

Oh yes how dare the Government point out the Opposition cut and pasted the wrong version of a bill, and that Labour were proposing a law change that would be worse than what the select committee had recommended.

kowtow

peterwn

“It’s a shame we have a minister who would prefer to take the approach of chipping at the opposition, rather than looking at how we can improve the law.”

Something Charles might reflect on since the previous Labour Government did just this sort of thing and worse the whole time. Their attitude was ‘we have the numbers – so eat that’.

In a similar sort of episode Labour and the Judiciary were on National’s back for refusing to support a Labour Government bill which among other things transferred various drug trials from the High Court to the District Court. Labour should have been talking turkey with National on other parts of the bill that National found objectionable, but Labour was too arrogant to do this. I think John Key should have taken a tougher stance over this, but then I have the greatest respect for John’s sense of judgment on political issues.

Nick R

The really funny part of this is that ACT, the Maori Party and the Greens all seem to be opposing the Government’s fix. So National need Labour’s support to get the numbers in the House. I expect Labour will mount a fierce, determined and principled opposition to the Bill, right up until they vote for it (as someone else wrote over at Dimpost). And I also expect Finlayson knows this, which is why he feels no need to pull his punches.

Also Finlayson is one of those people who insists he is always right. For instance he is right and the members of the Supreme Court and Justice Winkelmann are all wrong. All of them say that the police were aware that there was a risk in the covert surveillance that was engaged in yet Finalyson is convinced that the Police knew no such thing. Could it be that he is wrong?

[DPF: Well the Court of Appeal had ruled it legal on three occassions]

sthn.jeff

BeaB

How did we ever deserve such an embarrassingly inept opposition?
This is the outcome of years of career politicians with no real constituency, no real world skills, no real life experience, no connection with the lives most of us lead.
An unappealing crowd of middle class know-alls who have hijacked a workers’ party that is now hollow at the core.

Jinky

Just shows the dangers of rushing legislation through under urgency. Even the critics get it wrong! Something this serious needs to be scrutinised very carefully. The Supreme court is to be overridden here just because the Govt of the day and Labour are embarrassed by a decision of the court. Even Finlayson looked uncomfortable when he was trying to defend this in TV interviews. As others have said Labour will bitch and moan about it then vote in favour.

RF

Positan

re Elaycee “… there is no one remotely capable.”

Absolutely no argument. Look at what’s conveyed by that scenario and which should be easily and widely understood. To say, state, declare or announce that you support Labour proclaims you to be a completely unthinking, non-discerning, frankly brainless sort of a cretin.

Who, in their right mind would give their vote to a party comprised of such proven inepts and incompetents.

The claim that this decision is something of a bolt from the blue that has radically unsettled established understandings of the law is (with respect) pretty tenuous. No court before the Court of Appeal in Hamed had said that trespassory covert filming is lawful … and the Supreme Court then said this decision was wrong in law. (Hodgkinson expressed some doubt on the matter, but hardly could be said to have resolved it.) The previous Court of Appeal rulings that covert videoing was permissible (Fraser and Gardiner) related to non-trespassory uses – which I do not think are affected very much at all by the Hamed ruling. So if the claim is “we always thought this was legal – until the Supreme Court hit us from left-field”, I just don’t buy it … it smacks of a degree of wishful thinking on the part of the Police and the Government.

I have to agree with berend on this, DPF. The Police knew what they were doing was unlawful and admitted that in the appeal process. This isn’t a situation where they can say that there has been a sudden change in the law.

mikenmild

This is a situation where the Police knew there could be a problem. The government had twiddled it’s thumbs instead of passing the Search and Surveillance Bill that was introduced two years ago and reported back last year.
Now, when the government is rushing through a temporary fix at breakneck speed, Chauvel should be criticised for proposing some wrong wording in an SOP?

DJP6-25

GPT1

[DPF: Well the Court of Appeal had ruled it legal on three occassions]
The Court of Appeal first expressed doubt on the legality of trespassory video surveillance in 1997 (see para 267 of the Judgment). As FES notes the OC knew they did not have statutory authority (see para 47).

Keith Locke (I am embarrassed to say) was dead on in question time when he asked a question to the effect of why is it so urgent to fix now when the police knew they had a problem (at its most generous) when Winkelmann J said the search was unlawful. Fortunately for National Finlayson sounds like he knows a lot more than Locke so the point was lost.

Frankly Parliament has let the police and the public down – they’ve had 14 years since the CA first raised this as an issue and done nothing.

Whilst I like the proposed fix by Geddis it is damn sloppy Labour using the wrong section.

Can I just say (and GPT may not agree with me on this!) that, notwithstanding Parliament’s unnecessary delay in this area (there is nothing wrong with the concept of video surveillance, so long as it is done legally), it is completely unforgivable for the Police to knowingly continue to use unlawful practices in the hope that the Court will excuse their illegal behaviour.

That is not just wilful ignorance. Each occurrance is a flagrant breaking of the law.

It disturbs me that the National Party considers it acceptable to retrospectively justify knowingly illegal conduct just because some alleged criminals might get off. And the key word there is might. There is no guarantee that they will get off, it is simply a possibility.

Change the law to make video surveillance legal, but don’t try to say it was ok all along when clearly it wasn’t.

And I find it amusing that, even when trying to do something right, the Labour party still screws it up…

GPT1

Absolutely agree police should, subject to judicial oversight (warrant and admissibility) have the legislative authority to obtain a warrant for such actions.

I am not quite as strong on the unforgivability of police action as the 1997 cases simply raised an obiter doubt (I think they related to over the fence surveillance) and the difficulties (noted by the SC) of responding to a very serious issue with existing techniques. As Gault J said, perhaps generously, at para 267 it was “understandable” that in absence of specific legislative authority and in the absence of a specific Judicial decision saying unlawful that the decision was made. I think that is perhaps a bit generous as the writing had been on the wall for 14 years but I blame Parliament for that.

Retrospectivity is wrong and in my view unnecessary. s30 can apply up to this decision and the evidence rise and fall on the respective merits under the balancing test.

My strong preference would be for a warrant based system to be introduced but apparently that is “too hard” in the time available.

FES – I would have thought it could be grafted on to s312 with similar tests – the invasion of privacy is perhaps higher but similar to bugging/intercept devices. Do you know more about the s312 test?

agree that this could simply be grafted onto the s312 series of sections. Been a while since I have done a s312 challenge- was about 3 years ago, and we lost! I seem to remember there being a sealed warrant that only the prosecution and the judge could read. The defence was basically excluded from the challenge. Not the first time I have seen that, however!

Gault J is indeed very understanding, but I disagree with him. The Police knew the situation, even if it hadn’t been explicitly decided, and carried on anyway. They relied on the Courts to apply an ex post facto justification and they lost. That sort of behaviour from the Police is not acceptable, in my view. As you point out, Parliament should have done something about it a long time ago. More importantly, the Police should have raised this as an issue with Parliament a long time ago. It wouldn’t have taken much for them to make it an issue, but instead they left it.

Section 30 covers any problems the Police currently have. Therefore there is no need for retrospectivity.

And I won’t be making a submission. I have no faith that the National party will actually listen to a submission that disagrees with their point of view. Recent years practice when it comes to justice issues show the reasons for that.